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THE MINISTRY OF LABOR, WAR INVALIDS AND SOCIAL AFFAIRS

CIRCULAR No.09-LDTBXH/TT OF MARCH 18, 1997 PROVIDING GUIDANCE FOR THE GRANTING OF WORK PERMITS TO FOREIGNERS WORKING AT ENTERPRISES AND ORGANIZATIONS IN VIETNAM

Pursuant to Decree No.58-CP of October 3, 1996 of the Government on the granting of work permits to foreigners working at enterprises and organizations in Vietnam; pursuant to Article 51 of Decree No.12-CP of February 18, 1997 of the Government detailing the Law on Foreign Investment in Vietnam, the Ministry of Labor, War Invalids and Social Affairs provides the following guidances:

I. SCOPE OF REGULATION

1. Persons eligible for work permits as defined in Decree No.58-CP are foreigners and overseas Vietnamese (hereafter referred to as foreign workers) working for the following enterprises and organizations in Vietnam:

a/ State enterprises;

b/ Foreign invested enterprises, including: enterprises with 100% of foreign capital; joint venture enterprises; Vietnamese enterprises operating under business cooperation contracts with foreign partners; enterprises with investment in building-operation-transfer (BOT) projects; companies implementing BOT projects or BT (building-transfer) projects in accordance with the Law on Foreign Investment in Vietnam; foreign invested enterprises in export processing zones and industrial parks; contractors and sub-contractors, foreign companies hired to manage and/or implement foreign investment projects in Vietnam; medical, educational and training establishments set up and operating in accordance with the Law on Foreign Investment in Vietnam;

c/ Foreign joint venture banks, branches of foreign joint venture banks; joint venture insurance companies or joint venture insurance brokerage companies; branches of foreign lawyers’ organizations allowed to operate in Vietnam;

d/ Enterprises of other economic sectors, including: private enterprises, limited liability companies, stock companies and cooperatives with legal person status;

e/ Economic cost-profit accounting non-business units;

f/ Business and service organizations of State administrative agencies, armed forces units, mass organizations and other socio-political organizations.

2. The following persons are not eligible for work permits under Decree No.58-CP:

a/ Foreign laborers working for State agencies, or socio-political organizations of Vietnam or Vietnamese individuals;

b/ Foreign laborers who are members of the Managing Boards, General Directors and Deputy General Directors of foreign invested enterprises, including foreign joint venture banks and their branches, insurance companies and joint venture insurance companies with foreign invested capital;

c/ Foreign laborers working for diplomatic missions; consulates; representative offices of international organizations and foreign non-governmental organizations; representative offices of foreign economic, cultural, information, educational and scientific organizations; branches of foreign companies; foreign service companies; managing or executive lawyers of branches and lawyers of branches of foreign lawyers’ organizations in Vietnam, and people hired to do housework for staff members of those agencies;

d/ Foreign laborers hired by the employer to solve difficulties in emergency cases (complicated technical and technological incidents and/or situations occurring for objective or subjective reasons, affecting or threatening to affect production and business which cannot be handled by Vietnamese or foreign specialists in Vietnam); foreign laborers working in the form of technology transfer for agencies and organizations in Vietnam;

e/ Foreign laborers working at foreign enterprises and/or economic organizations that are contractors performing projects in Vietnam; foreign laborers working for Vietnamese enterprises and economic organizations outside Vietnamese territory;

f/ Overseas Vietnamese and foreigners permanently residing in Vietnam who invest in Vietnam under the Law on the Promotion of Domestic Investment; foreign laborers permanently residing in Vietnam, foreign pupils and students studying in Vietnam.

II. PROCEDURES FOR GRANTING WORK PERMITS TO FOREIGN LABORERS

1. Dossier of application for work permits.

The employer shall have to make three dossiers of application for work permits, each shall include documents prescribed in the following Points a and b:

a/ Documents of the employer:

- An application for work permits to foreign laborers;

- A document issued by the competent Vietnamese agency approving the recruitment of foreign laborers as stipulated in Article 7 of Decree No.58-CP (except in case of the recruitment of overseas Vietnamese stipulated in Article 10 of Decree No.58-CP and the recruitment of foreign laborers by foreign invested enterprises in accordance with Article 51 of Decree No.12-CP of February 12, 1997 of the Government detailing the implementation of the Law on Foreign Investment in Vietnam);

- A copy of the establishment and operating licenses or the permit for the opening of a branch in Vietnam, granted by the competent Vietnamese agency and notarized by a Vietnamese State Notary Public;

b/ Documents of the foreign laborer:

- An application for a permit to work in Vietnam;

- A copy of the labor contract signed with the employer and notarized by a Vietnamese State Notary Public; the labor contract must be signed according to the form prescribed by the Ministry of Labor, War Invalids and Social Affairs;

- A copy of the certificate of professional qualification and skill of the foreign laborer. Such certificate may be a diploma granted by a university, college or vocational school or a certificate of professional skill of the foreign laborer granted by the competent agency of his/her country in accordance with the provisions of law of that country; with regard to foreign laborers who are artisans in traditional crafts, they must be certified by the company that has sent them to work in Vietnam if they have no certificates;

- A health certificate issued by a provincial or higher-level hospital of Vietnam or a Vietnamese medical establishment with foreign invested capital. If the certificate is issued by a foreign country, it must comply with the regulations of that country;

- A curriculum vitae of the foreign laborer stuck with his/her photos. The certification of the curriculum vitae is prescribed as follows: regarding a laborer sent by his/her "parent" company to work in a foreign invested enterprise in Vietnam, his/her curriculum vitae shall be certified by that "parent" company; regarding a laborer recruited by the enterprise itself, his/her curriculum vitae shall be certified by a competent agency of the country where he/she is a citizen or the country where he/she last resided; in cases where that country’s law does not prescribe the certification of curriculum vitae, the laborer must make a clear declaration;

The documents of a foreign laborer include: a copy of the certificate of his/her professional qualification and skill, a health certificate (if it is issued in a foreign country), his/her curriculum vitae which, if made in a foreign language, must be translated into Vietnamese and notarized by a Vietnamese State Notary Public; if it has already been legalized by a consulate in accordance with Circular No.1413/NG-TT of July 31, 1994 of the Ministry for Foreign Affairs stipulating the procedure for consular legalization, it shall not have to be duplicated, translated and certified by the Vietnamese State Notary Public.

2. The employer shall keep a dossier at his/her establishment and submit the two others to the provincial/municipal Labor, War Invalids and Social Affairs Service of the locality where the establishment’s head office is located to apply for work permits.

3. After receiving full and valid dossiers, the provincial/municipal Labor, War Invalids and Social Affairs Service shall classify the dossiers and comply with the following provisions:

a/ With regard to dossiers of application for work permits with a term of less than 3 months and to cases mandated in writing by the Ministry of Labor, War Invalids and Social Affairs, the provincial/municipal Labor, War Invalids and Social Affairs Service together with the Police of the same level shall, basing themselves on the regulations of the Ministry of the Interior, consider the granting of work permits within 45 days after receiving the dossiers; in cases where work permits are not granted, they must reply in writing to the employer, stating the reasons therefore;

b/ With regard to dossiers of application for work permits with a term of 3 months or more (except for cases mandated by the Ministry of Labor, War Invalids and Social Affairs), within 5 days after receiving the dossiers, the provincial/municipal Labor, War Invalids and Social Affairs Service shall send a dossier together with an official dispatch to the Ministry of Labor, War Invalids and Social Affairs which shall coordinate with the Ministry of the Interior to consider the granting of work permits within 40 days from the date of receiving the dossier; in cases where labor permits are not granted, the Ministry of Labor, War Invalids and Social Affairs shall reply in writing to the employer, stating the reasons therefor.

4. The granting of work permits shall comply with the unified form issued by the Ministry of Labor, War Invalids and Social Affairs in Decision No.178/LDTBXH-QD of March 18, 1997 on the printing, issue and management of work permits granted to foreigners. Work permits shall be granted according to the terms of the signed labor contracts, which must clearly state the effective date and expiry date.

In cases where the employer and the foreign laborer agree to extend the contract term in accordance with Item 2, Article 13 of Decree No.58-CP, the employer shall have to make three dossiers, each of which includes:

- An application for the extension of the work permit which must also report on the implementation of the plan for the training of Vietnamese substitutes;

- A copy of the extended labor contract;

- The work permit already granted.

The employer shall keep a dossier and send the two others to the provincial/municipal Labor, War Invalids and Social Affairs Service which has granted the old work permit at least 30 days before the expiry of the old work permit. The consideration of the extension of the work permit shall comply with provisions of Point 3 of this Section within 15 days after receiving the full valid dossier.

5. Foreign laborers shall have to pay permit fee in accordance with the regulations of the Ministry of Finance.

III.- ORGANIZATION OF IMPLEMENTATION

1. Enterprises defined in Points 1.b, c, Section I of this Circular which want to employ foreign laborers (including overseas Vietnamese) and other enterprises and organizations which want to employ overseas Vietnamese laborers shall only have to make a dossier of application for work permits and shall not have to obtain permission for labor recruitment from the agency competent to grant investment licenses.

2. An employer using foreign laborers in Vietnam who has not yet got work permits or labor cards shall, within 5 months from the effective date of this Circular, fill procedures to apply for work permits in accordance with Decree No.58-CP and this Circular.

Foreign laborers working in Vietnam who have been granted labor cards or work permits with a term of less than 3 years are entitled to use those cards or permits till their expiry.

In cases where labor cards or work permits have a term of more than 3 years, which are still valid for two more years from October 3, 1996 or their effective duration has not been determined, the employer and the laborers shall have to fill procedures to apply for work permits.

3. The Head of the Labor, War Invalids and Social Affairs Service of the province or city directly under the Central Government shall grant work permits to foreign laborers according to his/her competence stipulated in Decree No.58-CP, in this Circular and in the written mandate from the Ministry of Labor, War Invalids and Social Affairs; supervise and manage foreign laborers in the locality; annually sum up and report the situation to the Ministry of Labor, War Invalids and Social Affairs.

4. This Circular takes effect 15 days after its signing.

In the course of implementation, if any problem arises, it must be promptly reported to the Ministry of Labor, War Invalids and Social Affairs for settlement.

The Minister of Labor, War Invalids and Social Affairs

TRAN DINH HOAN